Full and final settlement
Arif Memon
(Querist) 22 May 2014
This query is : Resolved
Dear Experts,
Greetings !!
I request your opinion how to claim my full and final settlement
Jan 2nd 2013 I joined a proprietorship Recruitment Services company from Delhi, I joined them in their pune office as Business Development Manager
I received an offer/ appointment letter without mentioning of Notice period, I requested owner of the company to provide me with a detail Appointment letter, however she kept telling we will give you but never received the same
In pune I was operating from her husband’s office who is Logistics business
On April 10th 2014, ,my March 2013 Salary was with held and bank was instructed with a Stop payment
April 24th my Director came to pune and told me cause of non-performance and mis management We need to apart and I was forced to put my resignation
My Director committed me that I will get My salaries, travel reimbursements and Pending leaves which was approximately 22 days. However since company has NO notice period policies and hence I will not get any notice period
After much follow up she released my March 2013 Salary and April Salary for 24 working days
Now she refused me to pay leaves encashment, reimbursement and notice period
I have following concern if you could help me
Dose my employer has right not to pay my pending leaves and reimbursement, on the basis that I have not performed?
Can I legally ask her to pay me for Notice period, since there is no mention of NP in offer/Appointment letter?
If I have a right to claim NP then how many days?
She has alleged me based on my wrong commitments she took a new office and expenses for the same are in lacs and she will recover it from me, although I have nothing to do with the new office since the office is in the name of her husband’s company and we are only occupying some part of it?
BAALASUBRAMANNYAMM
(Expert) 22 May 2014
First, you better to send a Notice of Demand to your employer, what ever dues to be recovered from them. Only after receipt of reply for it, you can proceed legally.
Rajendra K Goyal
(Expert) 22 May 2014
send legal notice regarding your claim, the steps may be decided on receipt of reply from them.
Sankaranarayanan
(Expert) 22 May 2014
yes i do agree with expert Sri Baala subramaniyam and Sri Rajendra K Goyal sir
Kumar Doab
(Expert) 22 May 2014
Did you resign with immediate effect in resignation submitted by you or mentioned notice period in it?
Has the company provided FnF statement?
First of all demand FnF statement showing all payables computed in it by redg. post., and check if company has computed notice pay recoverable from you, or notice pay payable to you, leave encashment, bonus etc.?
>>> If notice period is not inserted in any document provided to you, and company has adjusted notice pay recoverable from you then you can claim that it is not applicable, since no service conditions including notice period/pay was signed with you.
>>> If its is a commercial establishment provisions of leave policy can not be inferior to the (name of the state) Shops and Commercial Establishments Act. It can be superior.
The enactment was enacted to govern the service conditions in Shops, establishments,commercial establishments.
Since you were located at Pune, you can quote from:
Bombay Shops and Commercial Establishments Act
CHAPTER VII
Leave with Pay and Payment of Wages
and demand leave encashment of annual leave due to you.
If in FnF statement no notice pay is shown as recoverable from you then you may again refer to Bombay Shops and Commercial Establishments Act
бб.Notice of termination of service: Looking into your length of service you should be entitled to 30 days notice pay@ last drawn wages.
Forced resignation can be termed as offence and deemed termination and depending upon your designation/nature of duties you may succeed to claim retrenchment……..
If you can prove resignation was extracted by force/under coercion/threat it is better as the onus to establish it may fall upon you.
If you have stated in resignation that it has been demanded from you and collected on dated…………..against your wishes by Mr/Ms…………….and if company has accepted it then it can be better for you.
You may also go thru:
S.66 - Discharge of an employee without notice
The reimbursements that were promised to you and have been provided for in previous month’s of employment should also be paid to you.
>>> Let us assume that company claims that it is registered at Delhi and all employees are controlled from Delhi and all employees even if at Pune shall be deemed as if they were at Delhi for regulation and governance of service conditions then you may refer to :
Delhi Shops and Commercial Establishments Act that is also so employee friendly and in particular
Sec: 34. EMPLOYER TO FURNISH LETTERS OF APPOINTMENT TO EMPLOYEES
Your company has violated this clause………….
>>> If your company has not paid earned wages on usual pay day as defined in this Act and Payment of Wages Act then it can be penalized say Rs.7500/instance………….
>>> The female employer can not operate any office without properly registering it and if she has she can be penalized and shall have to pay penalties………………….
You may pursue the matter as deemed suitable.
Hope this shall suffice.
If you find any difficulties don’t hesitate to approach a competent and experienced labor Consultant/service lawyer to defend your interest.
Arif Memon
(Querist) 23 May 2014
Dear Experts
Thank you for your advice and God Bless you, Just one query can my employer file case against me for non-performance, since performance is a subjective matter, though i am not worried i have substantially done well and it cannot be considered as non-performance
Kumar Doab
(Expert) 23 May 2014
The husband of employer (that doesn't have any right otherwise) has already extracted resignation.
The result of non performance i.e. max. separation has already been effected.
Performance is not that easy to establish.
It depend upon various factors e.g. non availability of spares, staff, poor performance of the product, poor after sale service, bad image, noncompetitive pricing etc...............
You have already posted that you have performed well.
Approach your lawyer and defend your interest.
Retain access to a lawyer and spend quality time with experienced peers, employee's union leaders, trade union leaders and be properly informed of your rights.
